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ISDS Regimes and Democratic Practice: Creating Conflict of Interests between Governments, Investors and Local Populations

Abstract

The recent debate over the Investor-State Dispute Settlement (ISDS) regimes of international arbitration has resulted in concerted efforts aimed mainly at protecting the rights of states to regulate, improving transparency of proceedings and eliminating inconsistency in decision making of the tribunals. While the existing scholarly work frequently addresses issues of the relationship between the existing investment regimes and good governance in general, increased attention is rarely paid to the effects that investment arbitration has on democratic practice. The article applies an “action-based” approach to democracy, in order to analyse the role that the ISDS regimes play in exacerbating conflicts between the local populations, foreign investors and governments. The analysis leads to a conclusion that the ISDS regimes create incentives for the governments and foreign investors to disregard sound democratic practice. The article represents an attempt to move the discussion about the ISDS regimes away from the question of legitimacy of the regimes to the question of the impacts that the regimes have in practice.

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Reconciling after Transitional Justice: When Prosecutions are not Enough, the Case of Bosnia and Herzegovina

Abstract

The concept and study of transitional justice has grown exponentially over the last decades. Since the Nuremberg and Tokyo trials after the end of the Second World War, there have been a number of attempts made across the globe to achieve justice for human rights violations (International Peace Institute 2013: 10). How these attempts at achieving justice impact whether or not societies reconcile, continues to be one of the key discussions taking place in a transitional justice discourse. One particular context where this debate continues to rage on is in Bosnia and Herzegovina, many scholars argue that the transitional justice process and mechanism employed in Bosnia and Herzegovina have not fostered inter-group reconciliation, but in fact caused more divisions. To this end, this article explores the context of transitional justice in Bosnia and Herzegovina from a unique perspective that focuses on the need for reconciliation and healing after transitional justice processes like war crime prosecutions. This article explores why the prosecuting of war criminals has not fostered reconciliation in Bosnia and Herzegovina and how the processes have divided Bosnian society further. Additionally, this article presents the idea of state-sponsored dialog sessions as a way of dealing with the past and moving beyond the divisions of retributive justice.

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Same Old (Macro-) Securitization? A Comparison of Political Reactions to Major Terrorist Attacks in the United States and France

Abstract

After the November 2015 terror attacks in Paris, the French government reacted swiftly by declaring a state of emergency. This state of emergency remained in place for over two years before it was ended in November 2017, only after being replaced by the new anti-terror legislation. The attacks as well as the government’s reactions evoked parallels to 9/11 and its aftermath. This is a puzzling observation when taking into consideration that the Bush administration’s reactions have been criticized harshly and that the US ‘War on Terror’ (WoT) was initially considered a serious failure in France. We can assume that this adaption of the discourse and practices stems from a successful establishment of the WoT macro-securitization. By using Securitization Theory, we outline the development of this macro-securitization by comparing its current manifestation in France against the backdrop of its origins in the US after 9/11. We analysed securitizing moves in the discourses, as well as domestic and international emergency measure policies. We find extensive similarities with view of both; yet there are differing degrees of securitizing terrorism and the institutionalisation of the WoT in the two states. This suggests that the WoT narrative is still dominant internationally to frame the risk of terrorism as an existential threat, thus enabling repressive actions and the obstruction of a meaningful debate about the underlying problems causing terrorism in the first place.

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Accession to the European Union and Perception of External Actors in the Western Balkans

Abstract

This paper focuses on perceptions of the European Union (EU) and external actors (such as the United States, Russia, and Turkey) in six countries of the Western Balkans (WB) and Croatia in a comparative perspective. We present data generated by public opinion polls and surveys in all countries of that region in order to illustrate growing trends of EU indifferentism in all predominately Slavic countries of the region. In addition, there is an open rejection of pro-EU policies by significant segments of public opinion in Serbia and in the Republic of Srpska, Bosnia-Herzegovina. On the contrary, there is much enthusiasm and support for the West in general and the EU in particular in predominately non-Slavic countries, Kosovo and Albania. We argue that the WB as a region defined by alleged desire of all countries to join the the EU is more of an elite concept than that shared by the general population, which remains divided over the issue of EU membership. In explaining reasons for such a gap we emphasise a role of interpretation of the recent past, especially when it comes to a role the West played in the region during the 1990s.

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Application of Legal Entities to the European Court of Human Rights: a Significant Disadvantage as the Condition of Admissibility

Abstract

This article lists the content and deals with the criteria for assessing the presence or absence of material damage suffered by the applicant to the European Court of Human Rights, the subject of entrepreneurship, as a new condition for the admissibility of an individual application. The article establishes that the list and content of the criteria for assessing the presence or absence of material damage suffered by the applicant to the European Court of Human Rights are different for individuals and for legal entities – business entities. Moreover, the article initiates a discussion on the list and content of these criteria for the subjects of entrepreneurship – the applicants to the European Court of Human Rights. In the light of the Court’s practice, the author reveals their content as well as legal categories such as ‘substantial harm’, ‘financial harm’, ‘pecuniary damage’, ‘non-pecuniary damage’ incurred by the applicant, the subject of entrepreneurship, and highlights the issues to which objectives may be caused by ‘moral harm’ in case of violation of the rights of the subject of entrepreneurship.

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Energy Charter Treaty – Standards of Investment Protection

Abstract

The Energy Charter Treaty (ECT) in its Part III which regulates standards of protection guaranteed to foreign investors by the ECT States members, together with the Article 24 of the ECT, constitutes a kind of autonomous investment treatment within the ECT. The ECT provides for a very broad spectrum of standards of protection: fair and equitable treatment; most constant protection and security; prohibition of unreasonable or discriminatory measures; „umbrella clause”; national treatment; most favoured-nation standard and effective means to assert the claims. It can be said that at the time of its drafting the ECT enclosed all standards of protection as recognized in BITs and NAFTA. There have been more than 100 publicly known investment arbitration cases where the ECT was invoked, more than 30 of which concluded by arbitral awards. This comprehensive arbitral practice strongly influences the practice applying other IIAs and vice versa.

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Note-taking and Notability: How to Succeed at Legal Doctoral Fieldwork

Abstract

Fieldwork is the bridge between academia and practice. Often, this bridge is not crossed due to lack of guidance, time and practical experience. Academics are left on their own to guess what would work best. In facilitating this, this article assesses the methods used in a case study of doctoral fieldwork at the European Parliament within the civil service. Findings include identifying optimum methods to plan, develop and execute doctoral fieldwork.

This research is structured in four parts, which covers a literature review on fieldwork in the social sciences, the case study, the methodologies used, and a problem-solving section giving tips to succeed at fieldwork. Findings include a selection of methodologies which include participant observation and note-taking. These methodologies assist in improving skills such as time management, working under high pressure and delivering quality reports with attention to detail, which are fundamental for a successful academic career.

The experience covered in this article will assist academics in designing their fieldworks at all levels of their careers. The methods described are transferrable to fieldworks across legal, political and policy-making institutions.

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Understanding Contemporary Asymmetric Threats

Abstract

In the 21st century, warfare has evolved into a challenge that many countries are ill prepared to face. In contrast to the warfare of yesterday, victory is not defined by defeating an opposing military force, but rather defeating their ability to pursue political objectives by violent, often unconventional, means. Increasingly, these unconventional means are based on asymmetries between the two opposing forces.

A plethora of definitions for the term ‘asymmetric conflict’ exist, but they can largely be summarized by a general idea that one side in a conflict, due to its own failings or its opponents’ strength, is unable to achieve its political aims through conventional (i.e. symmetric) military means. Because of this, the weaker side uses new ideas, weapons and tactics in a manner that is not expected, exploiting surprise to undermine the relative strength(s) of their opponent (Lele, 2014). The character of contemporary asymmetric threats can be analyzed through a framework of several key characteristics, which will be described in this paper. Understanding this framework, particularly in light of the horizontal transfer of technology, tactics, organization structure and procedures between emerging asymmetric threats may contribute to better understanding of such threats.

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Camouflaged Culture: The ‘Discursive Journey’ of the EU’s Cultural Programmes

Abstract

This article inspects discursive shifts in the EU’s cultural policy and how these relate to the four ‘generations’ of EU cultural programmes: Raphaël, Ariane, Kaleidoscope; Culture 2000; Culture 2007; and the current Creative Europe programme. This paper therefore accounts for a ‘discursive journey’ that started in the 1970s and culminated with Article 128 in the Maastricht Treaty, which formally constituted the EU’s cultural policy. The article reveals that there can be detected certain shifts in discourses concerning the EU’s cultural programmes, but these shifts are aligned to older discourses within the cultural sector which, prior to the Maastricht Treaty, applied implicit cultural interventions. These therefore represented ‘camouflaged’ cultural understanding and appliances, which were instrumental and promoted economically and politically induced discourses. The major shift detected in the recent Creative Europe programme is a step away from discourses that facilitate the political construction of a ‘people’s Europe’, thereby utilising further discourses that promote aims which adhere to the Union’s Europe 2020 Strategy for smart, sustainable and inclusive growth.

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European Union and Challenges of Cultural Policies: Critical Perspectives. An Introduction

Abstract

This introductory article contextually frames the contributions to the special issue gathering articles critically addressing the key questions and challenges that the European Union (EU) and national cultural policies are facing in the 21st century. Interdisciplinary contributions in this special issue point to the diverse understandings of culture, the complexity of the EU governance system, and the discrepancy and mismatch of the national and EU levels that regulate the field of culture. The authors detect the inconsistent development strategies on different policy levels, and point to the democratic deficits of the EU governance system and EU policies. Selected contributions address a further focal shift of EU culture policies toward an economistic orientation to culture, while others address the need for a more critical approach that moves beyond predominantly positivistic and normative approaches to cultural policy research in Europe.

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